SENIOR NOTES DUE 2016 FIRST SUPPLEMENTAL INDENTURE between BORGWARNER INC., as Issuer and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee Dated as of [___________], 2006
___%
SENIOR NOTES DUE 2016
between
as
Issuer
and
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee
Dated
as of [___________], 2006
ARTICLE
1
Definitions
|
Section
1.01
|
Definition
of Terms
|
2 |
ARTICLE
2
The
Notes
|
Section
2.01
|
Designation
|
3 |
|
Section
2.02
|
Principal
Amount; Series Treatment
|
3 |
|
Section
2.03
|
Maturity
|
3 |
|
Section
2.04
|
Interest
|
3 |
|
Section
2.05
|
Form
of Notes
|
4 |
|
Section
2.06
|
Transfer
Restrictions
|
5 |
|
Section
2.07
|
Transfers
and Exchanges
|
6 |
ARTICLE
3
Redemption
Of The Notes
|
Section
3.01
|
Optional
Redemption by Company
|
6 |
| Section 3.02 | Change of Control Repurchase Event | 6 |
ARTICLE
4
Execution
of The Notes
|
Section
4.01
|
Execution;
Certificates
|
9 |
ARTICLE
5
Miscellaneous
|
Section
5.01
|
Ratification
of Indenture
|
9 |
|
Section
5.02
|
Trustee
Not Responsible for Recitals
|
9 |
|
Section
5.03
|
Governing
Law
|
10 |
|
Section
5.04
|
Separability
|
10 |
|
Section
5.05
|
Counterparts
|
10 |
FIRST
SUPPLEMENTAL INDENTURE, dated as of November [__], 2006
(the
“Supplemental
Indenture”),
between BorgWarner Inc., a Delaware corporation (the “Company”),
and
The Bank of New York Trust Company, N.A. successor in interest to ▇.▇. ▇▇▇▇▇▇
Trust Company, N.A. (formerly known as Chase
Manhattan Trust Company, National Association),
a
national banking association, as trustee (the “Trustee”),
under
the Indenture, dated as of September 23, 1999
(the
“Indenture”),
between the Company and the Trustee.
WHEREAS,
the Company executed and delivered the Indenture to the Trustee to provide
for,
among other things, the issuance from time to time of the Company’s debt
securities in one or more series as might be authorized under the
Indenture;
WHEREAS,
the Indenture provides that the Company and the Trustee may enter into an
indenture supplemental to the Indenture to establish the form and terms of
any
series of Securities (as defined in the Indenture) as provided by Sections
2.01
and 3.01 of the Indenture;
WHEREAS,
the Board of Directors of the Company has duly adopted resolutions authorizing
the Company to issue the Securities provided for in this Supplemental
Indenture;
WHEREAS,
the Company desires to enter into this Supplemental Indenture to provide for
the
establishment of Securities (as defined in the Indenture) to be known as the
[__]% Senior Notes
due
2016 (the
“Notes”),
the
form, substance, terms, provisions and conditions of which shall be set forth
in
the Indenture and this Supplemental Indenture;
WHEREAS,
the Company has requested that the Trustee execute and deliver this Supplemental
Indenture and has satisfied all requirements necessary to make (i) this
Supplemental Indenture a valid instrument in accordance with its terms and
(ii)
the Securities provided for hereby, when executed and delivered by the Company
and authenticated by the Trustee, the valid obligations of the
Company.
NOW
THEREFORE, each party agrees as follows for the benefit of the other parties
and
for the equal and ratable benefit of the Holders of the Notes:
ARTICLE
1
Definitions
Section
1.01. Definition
of Terms.
Unless
otherwise specified herein or the context otherwise requires:
(a) a
term
defined in the Indenture has the same meaning when used in this Supplemental
Indenture unless the definition of such term is amended and supplemented
pursuant to this Supplemental Indenture;
(b) the
terms
defined in this Article and in this Supplemental Indenture include the plural
as
well as the singular;
(c) a
reference to a Section or Article is to a Section or Article of this
Supplemental Indenture;
(d) Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof;
(e) the
following terms have the meanings given to them in this Section
1.01(e):
“Depositary”
means
the clearing agency registered under the Securities Exchange Act of 1934, as
amended, that is designated to act as the depositary for the Global Notes.
The
Depository Trust Company shall be the initial Depositary, until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, “Depositary” shall mean or include such
successor.
“Global
Note”
shall
have the meaning set forth in Section
2.05(b).
“Initial
Notes”
means
(i) all Notes issued on the first date that Notes were originally issued under
this Supplemental Indenture, (ii) any additional Notes issued under Section
2.02(a)
and
(iii) any Notes issued in replacement therefor.
“Notes”
shall
have the meaning set forth in the recitals above and shall include any Global
Note.
ARTICLE
2
The
Notes
Section
2.01. Designation.
The
Company hereby establishes a series of Securities designated the “[__]%
Senior
Notes due 2016” for issuance under the Indenture.
Section
2.02. Principal
Amount; Series Treatment.
(a) The
Notes
shall be initially limited to an aggregate principal amount of $[____________].
The Company may, from time to time, without the consent of the Holders of the
outstanding Notes, issue additional Notes, so that such additional Notes and
the
outstanding Notes shall be consolidated together and form a single series of
Securities under the Indenture as supplemented by this Supplemental
Indenture.
(b) Any
additional Notes issued under Section
2.02(a)
shall
have the same terms in all respects as the corresponding series of Notes, except
that interest will accrue on the additional Notes from the most recent date
to
which interest has been paid on the Notes of such series (other than the
additional Notes) or if no interest has been paid on the Outstanding Notes
of
such series from the first date that the Outstanding Notes were originally
issued under the Indenture, as supplemented by this Supplemental
Indenture.
(c) For
all
purposes of the Indenture and this Supplemental Indenture, all Notes, whether
Initial Notes, or additional Notes issued under Section 2.02(a),
shall
constitute one series of Securities and shall vote together as one series of
Securities.
Section
2.03. Maturity.
The
Notes
will become due and payable on November [__],
2016.
Section
2.04. Interest.
The
Notes will bear interest at the rate of [__]%
per
annum from November [__],
2006 until
the
principal thereof becomes due and payable or to the date of redemption (if
any)
of the Notes, such interest to be payable semi-annually on May [__]
and
November [__]
of each
year, to the Holders of record of the Notes as of the close of business on
the
[________]
and
[________]
preceding such interest payment dates, commencing, in the case of the Initial
Notes or any additional Notes issued prior to such date, on May [__],
2007.
Section
2.05. Form
of Notes.
(a) The
Notes
shall contain the terms set forth in, and shall be substantially in the form
of,
Exhibit
A
hereto.
The terms and provisions contained in the form of Notes set forth in
Exhibit
A
shall
constitute, and are hereby expressly made, a part of the Indenture, as
supplemented by this Supplemental Indenture.
Any
of
the Notes may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as the officers executing the same
may approve (execution thereof to be conclusive evidence of such approval)
and
as are not inconsistent with the provisions of the Indenture, as supplemented
by
this Supplemental Indenture, or as may be required by the Depositary or as
may
be required to comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any securities exchange
or automated quotation system on which the Notes may be listed, or to conform
to
usage, or to indicate any special limitations or restrictions to which any
particular Notes are subject.
(b) So
long
as the Notes are eligible for book-entry settlement with the Depositary, or
unless otherwise required by law, or otherwise contemplated herein, all of
the
Notes shall be represented by one or more Notes in global form registered in
the
name of the Depositary or the nominee of the Depositary.
The
Notes
shall be issued initially in the form of one or more permanent global securities
in registered form, substantially in the form set forth in Exhibit
A
(the
“Global
Notes”),
registered in the name of the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Global Notes may from time to time be increased or decreased
by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, in accordance with the instructions given by the Holder thereof,
as hereinafter provided.
The
transfer and exchange of beneficial interests in any such Global Notes shall
be
effected through the Depositary in accordance with the Indenture and the
applicable procedures of the Depositary. Except as provided in the Indenture,
beneficial owners of a Global Note shall not be entitled to have certificates
registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered Holders
of such Global Note.
Any
Global Note shall represent such of the Outstanding Notes as shall be specified
therein and shall provide that it shall represent the aggregate amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate
amount of Outstanding Notes represented thereby may from time to time be
increased or reduced to reflect redemptions, transfers or exchanges permitted
hereby. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby shall be
made
by the Trustee in such manner and upon instructions given by the Holder of
such
Notes in accordance with the Indenture and this Supplemental Indenture. Payment
of principal of and interest and premium, if any, on any Global Note shall
be
made to the Holder of such Note.
The
Company and the Trustee may treat the Depositary (or its nominee) as the sole
and exclusive owner of the Notes registered in its name for the purposes of
payment of the principal of or interest on the Notes, giving any notice
permitted or required to be given to registered owners under the Indenture,
registering the transfer of Notes, obtaining any consent or other action to
be
taken by registered owners and for all other purposes whatsoever; and neither
the Company nor the Trustee shall be affected by any notice to the contrary.
Neither the Company nor the Trustee shall have any responsibility or obligation
to any participant in the Depositary, any Person claiming a beneficial ownership
interest in the Notes under or through DTC or any such participant, or any
other
Person which is not shown on the register as being a registered owner, with
respect to either the Notes, the accuracy of any records maintained by the
Depositary or any such participant, the payment by the Depositary or any such
participant of any amount in respect of the principal of or interest on the
Notes, any notice which is permitted or required to be given to registered
owners under the Indenture, any consent given or other action taken by the
Depositary as registered owner, or any selection by the Depositary of any
participant or other Person to receive payment of principal, interest or
Redemption Price of the Notes.
Section
2.06. Transfer
Restrictions.
The
following provisions shall apply only to Global Notes:
(i) Each
Global Note authenticated under this Supplemental Indenture shall be registered
in the name of the Depositary or a nominee thereof and delivered to such
Depositary or a nominee thereof or Trustee if the Trustee is acting as custodian
for the Depositary or its nominee with respect to such Global Note, and each
such Global Note shall constitute a single Note for all purposes of the
Indenture and this Supplemental Indenture.
(ii) Notwithstanding
any other provision in this Supplemental Indenture, no Global Note may be
exchanged in whole or in part for Notes registered, and no transfer of a Global
Note in whole or in part may be registered, in the name of any Person other
than
the Depositary or a nominee thereof except as provided in Section 3.05 of the
Indenture. Any Note issued in exchange for a Global Note or any portion thereof
shall be a Global Note; provided that any such Note so issued that is registered
in the name of a Person other than the Depositary or a nominee thereof shall
not
be a Global Note.
(iii) Securities
issued in exchange for a Global Note or any portion thereof pursuant to clause
(ii) above shall be issued pursuant to Section 3.05 of the
Indenture.
(iv) At
such
time as all interests in a Global Note have been redeemed, repurchased,
converted, canceled or exchanged for Notes in certificated form, such Global
Note shall, upon receipt thereof, be canceled by the Trustee in accordance
with
standing procedures and instructions existing between the Depositary and the
Trustee. At any time prior to such cancellation, if any interest in a Global
Note is redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, the principal amount of such Global Note shall, in accordance
with the standing procedures and instructions existing between the Depositary
and the Trustee, be appropriately reduced, and an endorsement shall be made
on
such Global Note, by the Trustee, at the direction of the Trustee, to reflect
such reduction.
Section
2.07. Transfers
and Exchanges.
The
Notes shall be transferred and exchanged by the Holders thereof and the Trustee
in accordance with the terms and conditions set forth in Section 3.05 the
Indenture.
ARTICLE
3
Redemption
Of The Notes
Section
3.01. Optional
Redemption by Company.
The
Notes may be redeemed at the option of the Company on the terms and conditions
set forth in the form of Note set forth as Exhibit
A.
Section
3.02. Change
of Control Repurchase Event.
If
a
Change of Control Repurchase Event occurs, unless the Company has exercised
its
right to redeem the Notes as described in Section
3.01,
the
Company will make an offer to each Holder to repurchase all or any part (in
integral multiples of $1,000) of that ▇▇▇▇▇▇’s Notes at a purchase price in cash
equal to 101% of the aggregate principal amount of Notes repurchased plus any
accrued and unpaid interest on the Notes repurchased to the date of purchase.
Within 30 days following any Change of Control Repurchase Event or, at the
Company’s option, prior to any Change of Control, but after the public
announcement of the Change of Control, the Company will mail a notice to each
Holder, with a copy to the Trustee, describing the transaction or transactions
that constitute or may constitute the Change of Control Repurchase Event and
offering to repurchase the Notes on the payment date specified in the notice,
which date will be no earlier than 30 days and no later than 60 days from the
date such notice is mailed. The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the offer to purchase is
conditioned on the Change of Control Repurchase Event occurring on or prior
to
the payment date specified in the notice.
The
Company will comply with the requirements of Rule 14e-1 under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”),
and
any other securities laws and regulations thereunder to the extent those laws
and regulations are applicable in connection with the repurchase of the Notes
as
a result of a Change of Control Repurchase Event. To the extent that the
provisions of any securities laws or regulations conflict with the Change of
Control Repurchase Event provisions of this Note, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the Change of Control Repurchase Event provisions
of this Note by virtue of such conflict.
On
the
Change of Control Repurchase Event payment date, the Company will, to the extent
lawful:
(i) accept
for payment all Notes or portions of Notes properly tendered pursuant to the
Company’s offer;
(ii) deposit
with the paying agent an amount equal to the aggregate purchase price in respect
of all Notes or portions of Notes properly tendered; and
(iii) deliver
or cause to be delivered to the Trustee the Notes properly accepted, together
with an Officers’ Certificate stating the aggregate principal amount of Notes
being purchased by the Company.
The
Paying Agent will promptly mail its check or otherwise cause to be paid to
each
holder of Notes properly tendered the purchase price for the Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred by
book-entry) to each holder a new Note equal in principal amount to any
unpurchased portion of any Notes surrendered; provided that each new Note will
be in a principal amount of $1,000 or an integral multiple of
$1,000.
The
Company will not be required to make an offer to repurchase the Notes upon
a
Change of Control Repurchase Event if a third party makes such an offer in
the
manner, at the times and otherwise in compliance with the requirements for
an
offer made by the Company and such third party purchases all Notes properly
tendered and not withdrawn under its offer.
As
used
herein:
“below
investment grade rating event”
means
the Notes are rated below investment grade by both rating agencies on any date
from the date of the public notice of an arrangement that could result in a
Change of Control until the end of the 60-day period following public notice
of
the occurrence of a Change of Control (which period shall be extended so long
as
the rating of the Notes is under publicly announced consideration for possible
downgrade by either of the rating agencies); provided,
that,
a below
investment grade rating event otherwise arising by virtue of a particular
reduction in rating shall not be deemed to have occurred in respect to a
particular Change of Control (and thus shall not be deemed a below investment
grade rating event for purposes of the definition of Change of Control
Repurchase Event hereunder) if the rating agencies making the reduction in
rating to which this definition would otherwise apply do not announce or
publicly confirm or inform the Trustee in writing at its request that the
reduction was the result, in whole or in part, of any event or circumstance
comprised of or arising as a result of, or in respect of, the applicable Change
of Control (whether or not the applicable Change of Control shall have occurred
at the time of the below investment grade rating event).
“Change
of Control”
means
the consummation of any transaction (including, without limitation, any merger
or consolidation) the result of which is that any “person” (as that term is used
in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly
or indirectly, of more than 50% of the Company’s voting stock measured by voting
power rather than number of shares.
“Change
of Control Repurchase Event”
means
the occurrence of both a Change of Control and a below investment grade rating
event.
“investment
grade”
means
a
rating of Baa3 of better by ▇▇▇▇▇’▇ (or its equivalent under any successor
rating categories of ▇▇▇▇▇’▇); a rating of BBB- or better by S&P (or its
equivalent under any successor rating categories of S&P); and the equivalent
investment grade credit rating from any additional rating agency or rating
agencies selected by the Company.
“▇▇▇▇▇’▇”
means
▇▇▇▇▇’▇ Investors Service Inc.
“rating
agency”
means
(1) each of ▇▇▇▇▇’▇ and S&P; and (2) if either of ▇▇▇▇▇’▇ or S&P ceases
to rate the Notes or fails to make a rating of the Notes publicly available
for
reasons outside of the Company’s control, a “nationally recognized statistical
rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the
Exchange Act, selected by the Company (as certified by a resolution of the
Company’s board of directors) as a replacement agency for ▇▇▇▇▇’▇ or S&P, or
both, as the case may be.
“S&P”
means
Standard & Poor’s Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc.
“voting
stock”
of
any
specified “person” (as that term is used in Section 13(d)(3) of the Exchange
Act) as of any date means the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such
person.
ARTICLE
4
Execution
Of The Notes
Section
4.01. Execution;
Certificates.
The
Notes and any Officers’ Certificate to be delivered under the Indenture in
connection with the authentication and delivery of the Notes shall be executed
and delivered as set forth in the Indenture.
ARTICLE
5
Miscellaneous
Section
5.01. Ratification
of Indenture.
The
Indenture, as supplemented by this Supplemental Indenture, is in all respects
ratified and confirmed, and this Supplemental Indenture shall be deemed part
of
the Indenture in the manner and to the extent herein and therein
provided.
Section
5.02. Trustee
Not Responsible for Recitals.
The
recitals herein contained are made by the Company and not by the Trustee, and
the Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this Supplemental
Indenture. All of the provisions contained in the Indenture in respect of the
rights, privileges, immunities, powers, and duties of the Trustee shall be
applicable in respect of the Supplemental Indenture as fully and with like
force
and effect as though fully set forth in full herein.
Section
5.03. Governing
Law.
This
Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
Section
5.04. Separability.
In
case
any provision contained in this Supplemental Indenture or in the Notes shall
for
any reason be held to be invalid, illegal or unenforceable in any respect,
such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Supplemental Indenture or of the Notes, but this Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section
5.05. Counterparts.
This
Supplemental Indenture may be executed in any number of counterparts each of
which shall be an original; but such counterparts shall together constitute
but
one and the same instrument.
**********
IN
WITNESS WHEREOF,
the
parties hereto have caused this First Supplemental Indenture to be duly
executed, and their corporate seals to be hereunto affixed and attested, all
as
of the day and year first above written.
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Title:
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[Seal]
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Attest:
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Name:
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Title:
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THE
BANK OF NEW YORK TRUST COMPANY, N.A.
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Name:
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Title:
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[Seal]
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(Signature
Page to Supplemental Indenture)
EXHIBIT
A
[FACE
OF
NOTE]
CUSIP
NO.
[__________]
No.
[__]
$[___],000,000
[__]%
Senior Note due November [__],
2006
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS
AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY
THE DEPOSITARY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITARY
OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A
SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
BORGWARNER
INC., a Delaware corporation (herein referred to as the “Company”,
which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of $[_________] on November [__],
2016
(the “Maturity
Date”)
and to
pay interest thereon from November [__],
2006 or
from the most recent Interest Payment Date to which interest has been paid
or
duly provided for, semi-annually on May [__]
and
November [__]
in each
year (each, an “Interest
Payment Date”),
commencing May [__],
2007,
at [__]%
per
annum until the principal hereof is paid or duly provided for.
Any
payment of principal or interest required to be made on a day that is not a
Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on such day
and no interest shall accrue as a result of such delayed payment. Interest
payable on each Interest Payment Date will include interest accrued from and
including November [__],
2006 or
from and including the most recent Interest Payment Date to which interest
has
been paid or duly provided for, as the case may be, to but excluding such
Interest Payment Date.
The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the person (the
“Holder”)
in
whose name this Note (or one or more Predecessor Securities) is registered
at
the close of business on the [________]
and
[________]
(whether
or not a Business Day) next preceding such Interest Payment Date (a
“Regular
Record Date”).
Any
such interest not so punctually paid or duly provided for (“Defaulted
Interest”)
will
forthwith cease to be payable to the Holder on such Regular Record Date and
may
either be paid to the person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a special record date
(the
“Special
Record Date”)
for
the payment of such Defaulted Interest to be fixed by the Trustee (referred
to
herein), notice whereof shall be given to the Holder of this Note not less
than
ten days prior to such Special Record Date, or may be paid at any time in any
other lawful manner, all as more fully provided in the Indenture.
For
purposes of this Note, “Business
Day”
means
any day that is not a Saturday or Sunday or legal holiday in New York, New
York,
and on which commercial banks are open for business in New York, New
York.
Payment
of the principal of this Note on the Maturity Date will be made against
presentation of this Note at the Trustee’s corporate trust office located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, in such
coin or currency of the United States of America as at the time of payment
is
legal tender for the payment of public and private debts. So long as this Note
remains in book-entry form, all payments of principal and interest will be
made
by the Company in immediately available funds.
General.
This
Note is one of a duly authorized issue of securities (herein called the
“Securities”)
of the
Company, issued and to be issued in one or more series under an Indenture,
dated
as of September 23, 1999, as supplemented by the First Supplemental Indenture,
dated as of November [__],
2006,
and as it may be supplemented from time to time (herein called the “Indenture”),
between the Company and The Bank of New York Trust Company, N.A., a national
banking association (successor in interest to ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, formerly known as Chase Manhattan Trust Company, National
Association), as trustee (herein called the “Trustee,”
which
term includes any successor trustee under the Indenture with respect to a series
of which this Note is a part), to which indenture and all indentures
supplemental thereto, reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which
the
Securities are, and are to be, authenticated and delivered. This Note is one
of
a duly authorized series of Securities designated as “[__]%
Senior
Notes due November [__],
2006”
(collectively, the “Notes”).
Optional
Redemption.
This
Note may be redeemed in whole at any time or in part from time to time, at
the
option of the Company, at a redemption price equal to the greater of:
(i)
100%
of the principal amount of the Notes to be redeemed, plus accrued and unpaid
interest thereon to the redemption date, and
(ii)
as
determined by the Independent Investment Banker, the sum of the present values
of the principal amount of and remaining scheduled payments of interest on
the
Notes to be redeemed (not including any portion of payments of interest accrued
as of the redemption date) discounted to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus [___]
basis
points, plus accrued interest thereon to the redemption date.
“Comparable
Treasury Issue”
means
the United States Treasury security selected by the Independent Investment
Banker as having a maturity comparable to the remaining term of the Notes to
be
redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes.
“Comparable
Treasury Price”
means,
with respect to any redemption date, (1) the average of the Reference Treasury
Dealer Quotations for that redemption date, after excluding the highest and
lowest of the Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than three Reference Treasury Dealer Quotations,
the average of all Reference Treasury Dealer Quotations so
received.
“Independent
Investment Banker”
means
one of the Reference Treasury Dealers appointed by the Company.
“Reference
Treasury Dealer”
means
(1) each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Banc of America LLC, Calyon
Securities (USA) Inc., and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and their respective
successors, unless any of them ceases to be a primary U.S. Government securities
dealer in New York City (a “Primary
Treasury Dealer”),
in
which case the Company shall substitute another Primary Treasury Dealer, and
(2)
any other Primary Treasury Dealer selected by the Company.
“Reference
Treasury Dealer Quotations”
means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Independent Investment Banker, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Company and the
Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City time,
on
the third Business Day preceding that redemption date.
“Treasury
Rate”
means,
with respect to any redemption date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue, calculated on
the
third Business Day preceding the redemption date, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for that redemption date.
The
Company will mail notice of any such redemption at least 30 days but not more
than 60 days before the redemption date to each Holder of the Notes to be
redeemed. Unless the Company defaults in payment of the redemption price, on
and
after the redemption date, interest will cease to accrue on the Notes or
portions thereof called for redemption.
Change
of Control Repurchase Event.
This
Note shall be redeemed by the Company upon the occurrence of a Change of Control
Repurchase Event (as defined in the Indenture) on the terms and conditions
set
forth in the Indenture.
Events
of Default.
If an
Event of Default with respect to the Notes shall have occurred and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
Modification
and Waivers; Obligations of the Company Absolute.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series. Such amendment
may
be effected under the Indenture at any time by the Company and the Trustee
with
the consent of the Holders of not less than a majority in aggregate principal
amount of all Securities issued under the Indenture at the time Outstanding
and
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than a majority in aggregate principal amount of all outstanding
Securities affected by certain provisions of the Indenture, on behalf of the
Holders of all Outstanding Securities, to waive compliance by the Company with
such provisions. Furthermore, provisions in the Indenture permit the Holders
of
not less than a majority in aggregate principal amount of the Outstanding
Securities of individual series to waive on behalf of all of the Holders of
Securities of such individual series certain past defaults under the Indenture
and their consequences. Any such consent or waiver shall be conclusive and
binding upon the Holder of this Note and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver
is
made upon this Note.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place and rate, and in the coin or currency herein
prescribed.
Defeasance
and Covenant Defeasance.
The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and the related defaults and Events of Default, upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this Note.
Authorized
Denominations.
The
Notes are issuable only in registered form without coupons in denominations
of
$1,000 or any amount in excess thereof which is an integral multiple of
$1,000.
Registration
of Transfer or Exchange.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, the transfer of this Note is registrable in the Security Register
upon surrender of this Note for registration of transfer at the office or agency
of the Company in any place where the principal of and interest on this Note
are
payable, duly endorsed by, or accompanied by a written instrument of transfer
in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, the Notes are exchangeable for a like aggregate principal amount
of
Notes of different authorized denominations, as requested by the Holders
surrendering the same.
This
Note is a Global Security.
If the
Depository is at any time unwilling, unable or ineligible to continue as
depository and a successor depository is not appointed by the Company within
90
days or an Event of Default under the Indenture has occurred and is continuing,
the Company will issue Securities in certificated form in exchange for each
Global Security. In addition, the Company may at any time determine not to
have
Securities represented by a Global Security and, in such event, will issue
Securities in certificated form in exchange in whole for the Global Security
representing such Security. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery in
certificated form of Securities equal in principal amount to such beneficial
interest and to have such Securities registered in its name. Securities so
issued in certificated form will be issued in denominations of $1,000 or any
amount in excess thereof which is an integral multiple of $1,000 and will be
issued in registered form only, without coupons.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior
to
due presentment of this Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Holder as
the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to
the
contrary.
Defined
Terms.
All
terms used in this Note (except as herein otherwise expressly provided or unless
the context otherwise requires) which are defined in the Indenture and are
not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
Governing
Law.
This
Note shall be governed by and construed in accordance with the laws of the
State
of New York.
Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its facsimile corporate seal.
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Dated:
November ____,
2006
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TRUSTEE’S
CERTIFICATE
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OF
AUTHENTICATION
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This
is one of the Securities of the series
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designated
therein referred to in the
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within-mentioned
Indenture
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THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
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as
Trustee
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By:
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By:
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Attest: |
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Authorized
Signatory
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Secretary |
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OPTION
TO
ELECT REPAYMENT
The
undersigned hereby irrevocably requests and instructs the Company to repay
this
Security (or the portion thereof specified below), pursuant to its terms, on
the
Optional Repayment Date first occurring after the date of receipt of this
Security as specified below (the “Repayment
Date”),
at a
Repayment Price equal to 100% of the principal amount thereof, together with
interest thereon accrued to the Repayment Date, to the undersigned
at:
___________________________________________________________________
(Please
Print or Type Name and Address of the Undersigned.)
For
this
Option to Elect Repayment to be effective, this Security with the Option to
Elect Repayment duly completed must be received at least 30 but not more than
45
days prior to the Repayment Date (or, if such Repayment Date is not a Business
Day, the next succeeding Business Day) by the Company at its office or agency
in
The
City of New York,
which
will be located initially at the office of the Trustee at [▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Bond Operations - ▇▇], ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇.
If
less
than the entire principal amount of this Security is to be repaid, specify
the
portion thereof (which shall be $1,000 or an integral multiple thereof) which
is
to be repaid: $ _______.
If
less
than the entire principal amount of the within Security is to be repaid, specify
the denomination(s) of the Security(ies) to be issued for the unpaid amount
($1,000 or any integral multiple of $1,000; provided that any remaining
principal amount of this Security shall not be less than the Minimum
Denomination): $ _______ .
Dated:__________
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Note:
The signature to this Option to Elect Repayment must
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correspond
with the name as written upon the face of this
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Security
in every particular without alterations or
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enlargement
or any change whatsoever.
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